Beveridge & Diamond
 

EPA Plans to Withdraw Emission Comparable Fuel Exclusion Under RCRA

Beveridge & Diamond, P.C., December 10, 2009

On December 8, 2009, EPA issued a proposed rule to withdraw the Emission Comparable Fuel rule (“ECF Rule”), a regulation issued pursuant to the Resource Conservation and Recovery Act (“RCRA”) during the Bush administration.  74 Fed. Reg. 64,643.  Comments on the proposed withdrawal of the ECF Rule are due by January 22, 2010.

Comparable fuels are hazardous secondary materials that would otherwise be regulated as hazardous wastes but for their fuel value and hazardous constituent load, which is comparable to concentrations of hazardous constituents found in fossil fuels.  See 40 C.F.R. 261.38.  On December 19, 2008, EPA published a final rule expanding the conditional exclusion from the definition of solid waste—and, therefore, from regulation as hazardous wastes—for comparable fuels to include emission comparable fuels.  73 Fed. Reg. 77,954.  The ECF Rule went into effect on January 20, 2009. 

The exclusion for emission comparable fuels requires similar conditions for hazardous constituent concentrations as well as conditions meant to ensure that emissions are comparable to emissions from burning fuel oil.  The ECF Rule also sets specific conditions under which emission comparable fuel can be stored so that the materials are not discarded. 

The ECF Rule has drawn criticism both from environmental groups that see the rule as being too lenient and from industry that objects to the burdensome conditions on the exclusion.  In May 2009, EPA announced its intention to withdraw the ECF Rule.

For more information about this proposed rule and other RCRA developments, please contact Don Patterson at dpatterson@bdlaw.com, (202) 789-6032, Beth Richardson at erichardson@bdlaw.com, (202) 789-6066, or Erica Zilioli at ezilioli@bdlaw.com, (202) 789-6078